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Back to Wildlife Trafficking and Poaching

I. Introduction 

The Wildlife (Conservation and Management) Act of 1976 (WCMA) is a comprehensive piece of legislation criminalizing the hunting of protected animals and the unlicensed hunting of game.[1]  This law also prohibits various other acts, which include importing or exporting a trophy[2] without proper permission, dealing in trophies without a license, and transfer of trophies in disregard of legal procedures for proper transfer of ownership. 

The task of enforcing the law is a responsibility shared across various law enforcement institutions.  Among the government agents that can enforce this law are officers of the Kenya Wildlife Service (KWS), forest officers, police officers, and administrative officers.  However, the principal enforcement agency is the Kenya Wildlife Service (KWS), which has a Security Division that investigates wildlife crimes, among other things, and has prosecutorial powers.

It is worth noting that the Cabinet recently proposed a bill to repeal and replace the existing legislation, which if adopted would provide for a comprehensive institutional framework and impose more stringent penalties for wildlife offenses.[3]

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II. Poaching and Trafficking in Wildlife

The WCMA establishes three different conditions under which hunting is criminalized.  First, hunting certain classes of animals is a crime.  The law prohibits the hunting of a protected animal[4] as well as the hunting of a game animal[5] without a proper license or in violation of the terms of a license.[6]  A person who violates this provision commits what is known as a “forfeiture offence.”[7]  A person who hunts a game bird without a license or in violation of the terms of a license commits an “offence.”[8]

The law also imposes prohibitions on hunting in certain places.  A person who hunts any animal (protected animal, game animal, or otherwise) in a national park or national reserve is subject to penalties for a forfeiture offense, as well as to other specific penalties.[9]  The law also makes hunting any animal in a local sanctuary or area designated as such by a competent authority a forfeiture offense.[10]

Finally, the law imposes strict prohibitions on the use of certain tools and methods of hunting, mainly those giving a licensed hunter undue advantage over his prey.  These include

  • using certain types of gin or other similar traps, fire, automatic weapons, explosives, and poisoned weapons;
  • hunting a game animal between dusk and dawn;
  • engaging in a game drive other than a drive of birds;
  • driving a game animal into water to capture, incapacitate or kill it;
  • using certain vehicles and communication gear to facilitate the hunting of a game animal.[11]

A person who violates these provisions commits a forfeiture offense.

Besides hunting prohibitions, the law also prohibits dealing in, importing, exporting, and transferring trophies without a proper license or documentation.  A person who engages in a dealer’s business without the proper license or in violation of the terms of a license commits an offense.[12]  A person who transfers a trophy to another without an ownership certificate and/or without endorsing the certificate in the prescribed manner also commits an offense.[13]  The law makes it a forfeiture offense to export

  • any live animal, game animal, or bird without a proper permit and other than through a customs port entry;
  • any trophy other than a live animal without a certificate of ownership and other than through a customs port of entry; and
  • any animal or trophy designated as a prohibited export without a permit.[14]

Similarly, it is prohibited to import any trophy, unmanufactured ivory, or rhinoceros horn of any description without informing customs agents at the port of entry and producing it for inspection.[15]  Once in Kenya, the importer is required to approach the KWS to register the item(s) and obtain an ownership certificate if one has not already been issued in the country of origin.[16]  The law also prohibits importing a trophy designated a prohibited import.[17]  A person who violates any of these provisions commits a forfeiture offense and is also subject to other specific penalties not related to those for a forfeiture offense.[18]  

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III. Penalties

There are two classes of penalties, specific and general.  Specific penalties are those stipulated for the violation of a particular legal provision.  In the context of the WCMA, a person convicted of hunting any animal in a national park is subject to a fine ranging from 5000 Kenyan shillings (KES) (around US$58) to 20,000 KES (around US$232), and/or imprisonment ranging from six months to three years, which may include corporal punishment.[19]  Another good example of a provision imposing specific penalties is the crime of carrying on the business of a dealer without a license or in violation of the terms of one.  A person convicted of this crime is subject to a fine of up to 20,000 KES and/or a prison term of up to five years.[20]  A person who transfers trophies in violation of the WCMA is, on conviction, subject to a fine of up to 10,000 KES (about US$116) and/or one year imprisonment.[21]

In contrast, four classes of general penalties are imposed under the WCMA, depending on the severity of the offense.  First, an offense involving a protected animal, an animal listed in Part I of the First Schedule of the controlling law (an elephant, leopard, lion, or rhinoceros), or the animal’s trophy is punishable by a fine of up to 40,000 KES (about US$464) and/or up to ten years in prison.[22]  Second, if an offense involves an animal listed in Part II of the First Schedule (a bongo, reticulated giraffe, Rothschild giraffe, Kenya artebeest, greater kudu, black-and-white colobus monkey, beisa oryx, fringe-eared oryx, or Grévy’s zebra) or the animal’s trophy, the applicable penalties are much lower—a fine of up to 20,000 KES (about US$232) and/or a prison term not exceeding five years.[23]

Two types of penalty apply to forfeiture offenses.  A forfeiture offense not covered under the above-listed two classes of offenses is punishable by a fine of up to 15,000 KES (US$174) and/or prison term not exceeding three years.[24]  In addition, unless the court decides otherwise, the perpetrator forfeits to the government the instruments involved in the commission of the crime and the fruits of the crime.[25] 

The fourth class of penalty applies to all other offenses and involves a fine of up to 1000 KES (about US$11) and/or six months imprisonment.[26]

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IV. Enforcement Authority  

The KWS was established under the WCMA and is a state corporation with the mandate to conserve and manage Kenya’s wildlife as well as enforce all the relevant laws.[27]  The KWS’s Security Division is mandated to protect wildlife and enforce the WCMA.[28] 

The Security Division has five departments, including the Wildlife Protection Department, Intelligence Department, and Investigation Department.  The Wildlife Protection Department, which in addition to its ranger workforce includes a unit of tracker dogs, combats poaching.[29]  The Intelligence Department’s functions include “surveillance and monitoring of bandits and gangs around wildlife-protected areas.”[30]  Finally, the Investigation Department investigates wildlife crimes, including poaching and illegal trophies.[31]  In addition, it has statutorily conferred prosecutorial powers.[32]  The WCMA confers on any of the members of the Department above the rank of a ranger, subject to the supervision by the Attorney-General, all the powers available to a public prosecutor to prosecute any violation of its provisions.[33]

Certain enforcement powers are shared with other government institutions.  The WCMA gives any authorized officer (including an officer of the KWS, a forest officer, a police officer or an administrative officer) enforcement powers, which include inspection, detention, arrest, and search-and-seizure powers.[34] 

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Update (Apr. 24, 2014):

In December 2013, Kenya overhauled its wildlife regulatory legal framework and it enacted a new law, the Wildlife Conservation and Management Act, 2013.  Among the most notable changes the reform introduced was a dramatic increase in both custodial and financial penalties for wildlife related crimes.

Additional information on this topic is available.

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Hanibal Goitom
Foreign Law Specialist
November 2012
 

[1] Wildlife (Conservation and Management) Act of 1976, 15 Laws of Kenya, Cap. 376 (rev. ed. 2009), available at the Kenyan Law Reports website, http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/Wildlife__Conservation_and_Management_Act___Cap_376_.pdf.

[2] A “trophy” is defined as “any protected animal, game animal, or game bird, alive or dead and any bone, claw, egg, feather, hair, hoof, skin, tooth, tusk or other durable portion whatsoever of that animal or bird or fish or other aquatic life whether processed, added to or changed by the work of man or not, which is recognizable as such a durable portion.”  Id. § 2.

[3] The Wildlife Bill, 2011, available at the Kenya Wildlife Service website, http://www.kws.org/ export/sites/kws/info/publications/acts_policies/Wildlife-Bill-2011.pdf; Cabinet Pass [sic] Wildlife and Mineral Bills to Boost Sectors, Coastweek Kenya (Oct. 12–18, 2012), http://www.coastweek.com/3541_minerals.htm; Jill Craig, Kenya Anti-Poaching Laws May Get Overhaul, Voice of America (Nov. 29, 2012), http://www.voanews. com/content/kenyas-outdated-wildlife-laws-heading-for-an-overhaul/1555521.html

[4] Wildlife (Conservation and Management) Act, Third Schedule.

[5] Id., First Schedule.

[6] Id. § 22. 

[7] Id.

[8] Id.

[9] Id. §§ 13, 18.

[10] Id. § 19.

[11] Id. §§ 34 & 35.

[12] Id. § 43.

[13] Id. § 44.

[14] Id. § 45.

[15] Id. § 40.

[16] Id.

[17] Id.

[18] Id.

[19] Id. §13.  While the reference to corporal punishment remains in the WCMA, a provision on corporal punishment for certain crimes under the Kenyan Penal Code was repealed in 2003.  The Penal Code § 27, 12 Laws of Kenya, Cap. 63 (rev. ed. 2009), available at the Kenya Law Reports website, http://www.kenyalaw.org/Downloads/GreyBook/8. %20The%20Penal%20Code.pdf

[20] Wildlife (Conservation and Management) Act § 43.

[21] Id. § 44.

[22] Id. § 56.

[23] Id.

[24] Id.

[25] Id. § 52.

[26] Id. § 56.

[27] Id. pt. II; see also Overview – About Us, Kenya Wildlife Service, http://www.kws.org/about/i ndex.html (last visited Dec. 14, 2012).

[28] Security Service, Kenya Wildlife Service, http://www.kws.org/about/security.html (last visited Dec. 14, 2012).

[29] Id.

[30] Id.

[31] Id.

[32] Id.; Wildlife (Conservation and Management) Act § 54.

[33] Wildlife (Conservation and Management) Act § 54.

[34] Id. § 49.

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Last Updated: 04/25/2014